On June 29, 2020, in the case of June Medical Services v. Russo, the Supreme Court ruled 5-4 that a Louisiana law requiring abortion doctors to have admitting privileges at some hospital was unconstitutional and could not stand. To the surprise of many, Chief Justice John Roberts cast the swing vote, joining the four liberal justices–Ruth Bader Ginsburg, Stephen Breyer who wrote the opinion, Sonia Sotomayor, and Elena Kagan–in striking down that law. The case followed the precedent of Whole Woman’s Health v. Hellerstedt (2016), which struck down a very similar law in Texas. Back then, in the Whole Woman’s Health case, Anthony Kennedy was the swing vote, the Republican appointee who voted with the liberals. Roberts was one of the dissenters in the 2016 case: if it had been up to him, the Texas restrictive law would have been allowed to stand.
In this 2020 case, Justice Roberts voted with the liberals for one reason and one reason only: he believes in the principle of stare decisis, that is, that courts should follow precedents, even disagreeable precedents. This was no surprise to those of us who had observed him following precedents he found disagreeable before. He made clear that he was only voting with the liberals because the lower court had followed the 2016 precedent and he was not able to see any way of saying that the lower court had been in error in doing so, because the law in question in Louisiana was nearly identical to the one involved in the 2016 Texas case.
There is, however, a very big however. While Roberts voted with the liberals to uphold the lower court ruling striking down the Louisiana law, he did so very narrowly. Stephen Breyer wrote the court’s opinion, joined by the other three liberals. Roberts wrote a concurring opinion, and his concurring opinion, where he agreed with the conservatives on several points, seriously narrowed the effect of the Breyer opinion.
The 2016 opinion, written also by Breyer, drew on an earlier precedent, Planned Parenthood v. Casey, which of course was drawing on the original abortion decision of Roe v. Wade (1973). Roe v. Wade, of course, said that states cannot outlaw abortion. In Planned Parenthood v. Casey (1992), the Court ruled that states cannot put an “undue burden” on a woman seeking an abortion. In the 2016 Whole Woman’s Health case, Justice Breyer interpreted the words “undue burden” as meaning that when a state places a burden on getting an abortion, the degree of the burden must be balanced against the compelling state interest that motivated the passage of the law. Breyer applied that precedent, his own precedent, in the 2020 June Medical Services case.
And that is precisely what Justice Roberts did not go along with in his concurring opinion in this 2020 case. Justice Roberts wrote that the test of whether an abortion restriction law can stand is whether it poses a “substantial obstacle” to getting an abortion and whether that law has a “rational basis.”
The upshot is that Roberts, by narrowing Breyer’s ruling with his concurring opinion, gave a green light to states to craft abortion restriction laws–maybe even laws that require doctors to have admitting privileges at a hospital–in a way that will allow him to let them stand without being unfaithful to stare decisis. In other words, such laws need to be sufficiently different from the Texas law that the Court struck down in 2016, so that the precedent from the 2016 Texas case won’t be so obviously applicable.